Privacy Guides

The Noob's Guide To Privacy is my attempt to educate my friends and family about online privacy and digital security, and a guide on how we can protect ourselves in this digital world.

Privacy Tips

Collection of tips and tricks on how to navigate a simple life in a digital world.

Privacy Tips

How To Avoid Sharing Your Phone Number At Dr Lal PathLabs?

Website: https://www.lalpathlabs.com

Privacy Policy: https://www.lalpathlabs.com/privacy-policy.aspx

Getting Started

Dr Lal PathLabs provides pathology services. When you enter their store to get a blood test, you will have to register yourself at a kiosk.

The welcome screen will ask you for your mobile number, and will send you an OTP to confirm your mobile number.

In case if you want to avoid sharing your mobile number, there will be a hidden option at the second screen (where you have to enter the OTP).

At the bottom of the screen, you will find an option titled “I don't have the phone” or “OTP not received”. Clicking that will bypass the mobile number requirement. However, to reach the second screen, you have to enter a mobile number at the first screen.

You are at the liberty of entering a false number if you wish to.

Collecting Your Report

Keep the payment receipt safely. It contains the Lab/Visit ID, which is required to download your report.

The report can be collected from the store, or can be downloaded from the Dr Lal PathLabs website.

Noob's Guide To Privacy

Last Updated On: 14 Aug 2021, 17:00 PM

Welcome to Noob's Guide To Privacy. This is my attempt to educate my friends and family about online privacy and digital security, and a guide on how we can protect ourselves in this digital world.

Whether you are an activist, a celebrity, a politician, or just another ordinary person, privacy is for everyone.

Whom are we protecting ourselves from?

Our privacy is in danger, and it is being constantly under attack by government agencies, big tech companies and non-state actors.

Governments across the globe indulge in state-sponsored surveillance to combat terrorism, prevent crimes, and to catch criminals. Unfortunately, surveillance is also used by governments for their political gains.

What type of protection is available to us against state-sponsored surveillance?

The only protection I can think of are legal remedies. Over 150 national constitutions mention the right to privacy. In India, the Right to Privacy is a fundamental right. In addition to that, the Right to Privacy is enshrined in the Universal Declaration of Human Rights.

There has been constant attempts to weaken our right to privacy, by attempting to control the use and the distribution of tools like End-to-End Encryption (E2EE).

In the last few years, we have seen a drastic change in the business model of companies.

Big tech companies of our time like Amazon, Google, Facebook, Microsoft, etc. are solely depended on our data. They monetize our data, and sell it to advertisers. This type of business model allows free services and platforms like YouTube, Instagram or Google Search profitable.

If you're not paying for the product, you are the product.

How true this statement is? We surely are not paying for the online services that we use, then how come we are the product?

We are not paying for free online services like Google Maps, Bing, YouTube, Facebook, Instagram, and Twitter with fiat currency, in fact, we are paying for them with our data.

They use our data and our information to show us advertisements which we are most likely to click on. These platforms are designed to be addictive, the more we spend our time on these social media platforms, the more ads they can show us.

Not only we have to ponder upon the data hogging business model of these companies, we also have to think about the ways they implement it. Social media is addictive by design. And that design is serving the big tech companies.

What type of protection is available to us against surveillance capitalism?

Surveillance capitalism is an economic system centred around the commodification of personal data with the core purpose of profit-making.

There are several steps we can take to fight surveillance capitalism.

  1. Demand stronger data protection laws.
  2. Read the terms and conditions before signing up for any service.
  3. Be mindful of what social media platforms you use and how they use your data.
  4. Limit the amount of data you share online.
  5. Avoid using data hungry platforms altogether, and seek ethical alternatives.
  6. And finally, claim your digital rights.

Human Rights are interlinked, if one human right is violated, other human rights are also weakened. If one human right is protected, other human rights are also strengthened.

Similarly, if one person claims their digital rights, it helps others to protect and claim their digital rights as well. If one person gives up their digital rights, it weakens others' rights as well.

By non-state actors, I mean individuals who indulge in illegal activities like cyber crimes to target others.

What type of protection is available to us against cyber crimes?

Nowadays, almost every country has its set of law governing a wide range of online activities like e-banking, e-commerce and other aspects of technology.

In India, there is the Information Technology Act, 2000 which is a comprehensive law that deals with technology. This Act also lays down penalties and punishment for committing cyber crimes in India. And the Indian Penal Code which was also amended to include a range of crimes like fraud, forgery, theft, etc. committed over the internet or through any electronic device.

Coming Soon!

WhatsApp Is Crumbling And We Aren't Rumbling

Pompeii is a city of legend and myth whose story got frozen in time by ash and dust in a catastrophe that could have been avoided to an extent had its inhabitants listened to Mount Vesuvius’ warnings. But they didn’t, and their mistake will never be forgotten, as history isn’t forgiving and the remnants are perfectly preserved.

Probably, dear reader, you may be wondering what Pompeii has to do with anything, particularly with any current news. Fortunately, if you keep reading (won’t be long, I promise), you may have your questions answered.

We all know about WhatsApp, the giant in instant messaging services, the app we all have on our phones and has become a daily driver that makes our lives easier. It all started with good intentions — a way of allowing people to communicate easily and for free with their loved ones. But alas, in February 2014, the giant gave its first warning when it was bought by Facebook.

The second of many warnings that were to come revealed itself in the shape of the founders of the app fleeing the company because they considered whatever was happening in WhatsApp’s backstage dangerous. To be precise, they fled because of the rampant privacy violations that were taking place systematically for all users. Yet, no one paid attention and so, Facebook kept rumbling and getting bigger by the day, not unlike Mount Vesuvius.

The last spectacular warning, the one that finally made people scratch their head, was a change in WhatsApp’s new policy update. On January 6, 2021, WhatsApp announced an update on its terms of service and privacy policy to be effective from February 8, 2021, onward. The announcement also mentioned that users who refuse to accept the new policy would no longer be allowed to use WhatsApp.

This is the content of the controversial update that led to a mass exodus of users switching to alternative messaging apps including Signal and Telegram. Basically, the update gave an extraordinary amount of power to WhatsApp (aka Facebook) over their users’ data, with no way of reasonably avoiding it.

The exodus that took place weeks ago shows how much the current generation values their privacy and is willing to take steps to protect it. However, it was not enough because this mass shift only sent WhatsApp to its damage-control mode. WhatsApp postponed its policy update until May 15, 2021 (so most people forgot about it again), and released a blog post explaining how user privacy is important to them. WhatsApp's users even saw a status message from WhatsApp of a banner explaining the users ‘how private and secure WhatsApp is.’

Today, I will explain this post in clear and easy-to-understand terms. I will also try to convince the readers to delete WhatsApp and use an ethical alternative, or at least one that doesn’t milk them like data cows.

Does WhatsApp Protect And Secure Your Personal Messages? Let’s Find Out.

1. We can’t see your personal messages or hear your calls, and neither can Facebook*: Neither WhatsApp nor Facebook can read your messages or hear your calls with your friends, family and co-workers on WhatsApp. Whatever you share, it stays between you. That’s because your personal messages are protected by end-to-end encryption. We will never weaken this security, and we clearly label each chat, so you know our commitment. Learn more about WhatsApp security here.*

In theory, WhatsApp chats are end-to-end encrypted. WhatsApp, Facebook, or anyone in between, cannot read your messages. I say ‘in theory’ because there is no way of proving that. WhatsApp is a closed sourced proprietary software. A closed source software can be defined as a proprietary software distributed under a licensing agreement to authorised users with private modification, copying and republishing restrictions.

In simpler words, the source code is not shared with the public for anyone to look at or change. Closed source is the opposite of open source. Thanks, Wikipedia! So, we can’t know what is going on behind the code. It is also quite likely that there is a backdoor in the WhatsApp source code, leaking all your sensitive data to governments, hackers, advertisers and the highest bidders.

Even with the encryption in place, and assuming that it’s not a scam, WhatsApp regularly asks its users to make a security copy of their chats in the cloud, a copy that, by the way, is not encrypted and is indeed examined by, for example, Google Drive. So, like the Pompeii inhabitants, we are having our mistakes frozen and analysed forever.

This is why we should use an open sourced software.

2. We don’t keep logs of who everyone is messaging or calling*: While traditionally, mobile carriers and operators store this information, we believe that keeping these records for two billion users would be both a privacy and security risk, and we don’t do it.*

This is hard to believe. Isn’t WhatsApp collecting ‘metadata’ (that too, unencrypted) on its users?

Metadata is data about your actual data. It can be used to know a lot about you, like;

  1. With whom you’ve been in contact, when and where.
  2. When you are awake and when you go to sleep.
  3. Which doctor you go to.
  4. To whom you write a lot and to whom not at all.
  5. When you are at work.
  6. When you are sick and, when and where you go on a vacation.

From this type of data, WhatsApp/Facebook can create a profile about you, which they can sell to advertisers.

3. We can’t see your shared location and neither can Facebook*: When you share your location with someone on WhatsApp, your location is protected by end-to-end encryption, which means no one can see your location except the people you share it with.*

That’s true because everything you share is protected by end-to-end encryption. Nobody can read your messages except the recipient.
This does not mean that WhatsApp or Facebook cannot collect your location data.

WhatsApp and Facebook cannot see your ‘shared location’. But both of them can see your current location because it’s as easy as looking at the signal of your mobile phone and finding out where it is coming from.

4. We don’t share your contacts with Facebook: When you give us permission, we access only the phone numbers from your address book to make messaging fast and reliable, and we don’t share your contacts lists with the other apps Facebook offers.

“WhatsApp does not share your contact lists with other apps Facebook offers,” and
“WhatsApp does not share your contact lists with Facebook.”

Can you spot the difference?

5. Groups remain private: We use group membership to deliver messages and to protect our service from spam and abuse. We don’t share this data with Facebook for ads purposes. Again, these personal chats are end-to-end encrypted, so we can’t see their content.

Groups remain private, really? A bug discovered on WhatsApp said otherwise. Over 400K, private WhatsApp group invite links are exposed to search engines. Your WhatsApp groups may not be as secure as you think they are. You can also watch this video to learn more.

What Can I Do To Protect Myself And My Loved Ones?

First, look at open software options, Signal being the most famous one, thanks to its unbreakable encryption and the fact that they refuse to collect basically any data about you. Moreover, the company can’t be bought or sold, as a consequence of its nature of being a non-profit organisation.

Let’s switch to Signal!

If you don’t trust me, listen to Edward Snowden, Elon Musk, Jack Dorsey, Laura Poitras, Bruce Schneier and millions of other Signal users.

You may have heard of Telegram, but why do I avoid recommending it?

Mainly, because it likes to keep its practices in the shadow, and is unclear when it comes to answering easy and direct questions. They do, however, have excellent functions and an amazing UI.

Let’s avoid being another Pompeii, simply by listening to all the warnings we have been issued so far, and knowing that there are many alternatives to WhatsApp (not only Signal or Telegram). Protect yourself and protect others. What is allowed today may not be so in the future, and everyone knows that once something gets uploaded on the internet, it there to stay forever.

So, what will you do, dear reader? Freeze or survive?

Reading The Fine Print: YKA’s Terms of Service

Youth Ki Awaaz has a growing community of more than 75000 writers, users, and creators — and is read by more than 4 million people every month. But there is one thing which nobody reads, and that is their Terms of Service.

Unlike other companies, Youth Ki Awaaz’s ToS is not very long or boring, so I highly recommend you to read it for yourself because I’m quite sure you blindly agreed to it while making your account. I did that to, I made my account without reading the terms, and now I somewhat regret it.

Before you publish any more articles on Youth Ki Awaaz, I ask you to read this and their Terms of Service.

Youth Ki Awaaz if you are reading this, I have few questions.

1.1. The Website and its content is owned and operated by YKA Media Private Limited (“Company/we/us/our”). The Company has been incorporated under the Companies Act, 1956 under CIN U74900DL2014PTC263551 having its registered office at 309, MetroPlex East, District Centre, Laxmi Nagar, Delhi, 110092.

The fact that Youth Ki Awaaz is registered as a company and not as an NGO really baffles me. I’m curious to know why is that?

4.3 ,By submitting or posting User Content, you grant us an irrevocable, royalty-free, license to use, display, copy, reproduce, delete, add to, prepare derivative works of, publish and distribute any such User Generated Content and all intellectual property rights associated therewith, throughout the world in any media formats, without any obligation to make any payment to you or others or to give you credit for the same.

User-generated content is the articles or videos you make and publish on Youth Ki Awaaz, like this article, which is generated by Alizayd.

When I click to publish, I grant Youth Ki Awaaz an irrevocable, royalty-free, license to use, display, copy, reproduce, delete, add to, prepare derivative works of, publish and distribute my work.

Yes, you continue to be the actual author of your work, but the irrevocable nature of the agreement is something which you should question.

(Even the ToS of Instagram uses similar words, but you can always revoke your consent by deleting your photos. Moreover, one should not be using Instagram in the first place.)

Try deleting an article you published on Youth Ki Awaaz. Turns out you can’t do that, nor you can edit it after sometime. Don’t you think that is wrong? Not a legal wrong, but a moral wrong?

We as users or consumers of Youth Ki Awaaz must demand the Right to be deleted. Right to remove, edit or delete our accounts, it is a part of Right to Privacy. And the Right to Privacy is a fundamental right.

4.3 Any User Generated Content submitted or posted by you shall undergo a screening process. This process includes review and modifications to the User Content by our in-house editorial team. We may consult and communicate with you in respect of any such modifications required in the User Content submitted or posted by you.

The Terms of Service of Youth Ki Awaaz has many issues, like there are two paragraphs numbered 4.3.

The articles you write undergo a screening process to check if they comply by the Community Guidelines or not. And they can also modify your content, which they did to my previous article on WhatsApp’s Terms of Service. They changed the title to something, which I don’t like.

Even if the editorial team tried to consult me before changing, I would have not been able to answer their emails because I lost access to my old email. YKA’s website is quite glitchy, and I’m unable to change my email address.

If anyone from the Youth Ki Awaaz team is reading this, please help me change my email.

4.5 You further grant us the right to use your name under the license contained in this clause 4.1 in association with your User Content and the promotion and advertising thereof. You also waive any right to inspect or approve any final version of the User Generated Content.

Okay, Youth Ki Awaaz I get that, your company your rules, you can do that. But just be careful, not allowing me to inspect or approve any final version of my content, that can violate Section 57 of the Copyright Act. That can violate my moral rights as the actual author of the content.

10.5 We do not endorse any views expressed on the Website and are merely a platform for users to generate and display relevant Content. As such, we are not responsible for any User Content posted on the Website and do not endorse or subscribe to the views contained in any User Content.

Youth Ki Awaaz do not endorse any views expressed on the website. Then why modify our work? Why change our words? Why not let us be original on your website?

And most importantly, if an article is recommended as a “Staff Pick”, are you still not endorsing any views?

Any article you take, the first line will be, “This post has been self-published by (name of the author). Just like them, anyone can publish on Youth Ki Awaaz.”

So, I’m not allowed to change, edit or delete my self-published article. The in-house editorial team may remove, edit, or add any part of it. After modification by the team, is that article still self-published?

Fairness and the freedom of speech and expression are core to YKA’s existence. And we do believe that the best way to counter opposing ideas is to battle ‘em out with more ideas. Censorship is not the solution. (Community Guidelines)

I’m curious to see if this article is censored or not. Even though YKA says censorship is not a solution, they hold the right to remove anything from their website without any reason. (See 7.5)

7.5 We reserve the right to, but do not have any obligation to, (i) remove, refuse to distribute, edit, modify or otherwise manipulate any Content at our sole discretion, at any time, without notice to you or for no reason at all, and (ii) to remove or block any Content from the Website.

When I showed YKA’s Terms of Service to a friend, she said, “this is clearly written by someone who hates their job”. That is a bold statement, but if you go and read the Terms for yourself, you will notice that there are some tiny mistakes.

There are two paragraphs numbered 4.3, one of them have an off placed comma, 1.1 seems to have a grammatical mistake, all the sub-clauses of paragraph 6 are not properly numbered, and the community guidelines have some slangs in it. Tiny mistakes, not huge or serious mistakes.

However, apart from all this there is something which is missing, that is more freedom to the user, more freedom to the people who use Youth Ki Awaaz’s website to write articles every day.

We have to demand and claim our rights which allows us to delete and edit our content, and permanently delete our profiles.

An open letter to my friends.

Dear Reader,

I'm writing this to inform you that I will delete my WhatsApp account on 15 May 2021.

I know that you are well aware of the reasons why. That's why in this letter I'm not going to tell you about the reasons why our online privacy and security is important and how we can protect it.

You use Facebook and its services, and you know exactly the risks associated with it. I'm not here to tell you that you should stop using services from Facebook and other Big Tech giants to claim your digital rights.

You can keep using WhatsApp after they implement their new terms of service and privacy policy. I will not mind that, that is completely your choice.

All I'm asking is to please start using an alternative messaging app, which is not owned by Facebook or Google and which does not feed its business model by collecting our personal data.

Not because it is good for your privacy, but because it will help me protect myself and allow me to delete WhatsApp.

How? You may ask.

Imagine I have 10 friends, all of them use WhatsApp. But out of those 10, 3 of my friends also use Signal.

I, as a Signal user, will have 3 contacts with whom I can chat. If you also decide to install Signal, even though I will be your only contact on Signal. On my end, because of you, my contact list on Signal will grow by +1.

If all my friends install Signal, it will help me delete WhatsApp permanently.

Please install a non Facebook and non Google messaging app because someone in your contact list wants to get rid of them.

Your small gesture will not only protect your privacy, but will also help your contact to delete WhatsApp.

Thank you,

Someone in your contact list who wishes to delete WhatsApp.

Human Rights and Digital Rights in India: Impact on our Society and the Laws

2nd Edition of my dissertation.

Human Rights and Digital Rights in India: Impact on our Society and the Laws

CHAPTER 1: INTRODUCTION

1.1 Introduction

The never-ending aspect of the law is always intriguing, especially the field of technology law. We are constantly surrounded by technology. Technology Law is a new and growing field with a massive potential which will bring new opportunities and solutions on the table, like significantly reducing the cost and time of administration of justice, and the reduction in the justice gap.

The IAMAI-Kantar ICUBE1 2020 report estimates that the number of active internet users in India will increase to 900 million by 2025 from the present 622 million.2 This increase is in direct correlation with the increase in smartphone usage in the country. According to the India Cellular & Electronics Association (ICEA) report, by 2022 there will be around 840 million smartphone users in India.3

India is yet to have its data protection law, a law which is at the utmost importance in the 21st century.4 The Digital India initiative right now is in its prime, every day the government of India is launching a new e-Governance scheme for the public, new tech startups coming up every day and our reliance on technology is increasing day by day. However, all this is happening without a data protection law. Our shift to the digital world is at risk, our data is at risk without any law to protect our personal data, or to regulate the data sharing between different enterprises, and to prevent the risk of mass surveillance.

The topic of this Dissertation is “Human Rights and Digital Rights in India: Impact on our Society and the Laws. The researcher chose this topic because the researcher is deeply passionate with the field of Technology Law and Policy.

In this dissertation, the researcher will focus the research on the importance of a good data protection law, its benefits and what could go wrong if case of its absence. The researcher will also discuss new and upcoming technologies like the emergence of Cryptocurrency and Blockchain and its impacts on our society, privacy and human rights and how it will impact the law making process of our country. The researcher will also share the analysis of the Draft Data Protection Bill5 and mention different types of surveillance and its legal implications.

The importance of this topic arises due to the increasing number of internet users and e-Governance initiatives. When most people spend their time online, the most crimes also happen online. It is important for us to understand how to protect ourselves in the digital worlds and to know about the law which we have on our disposal.

1.2 Right to Privacy

Whether you are an activist, a celebrity, a politician, or just another ordinary person, privacy is for everyone.

On 24 August 2017, the Supreme Court of India in a historic judgement declared the right to privacy as a fundamental right protected under the Indian Constitution. In declaring that this right stems from the fundamental right to life and liberty.

The judgement was pronounced in response to a reference made in connection with the legal challenge to India's national identity project – Aadhaar – during which the Advocate General of India argued that the Indian Constitution does not include within it a fundamental right to privacy. His arguments were based on two cases decided by the Supreme Court – one, MP Sharma v. Satish Chandra decided by an eight judge bench in 1954 and the other, Kharak Singh v. State of Uttar Pradesh, by six judges in 1962. Both cases had held, in different circumstances, that the Constitution of India does not specifically protect the right to privacy.

Our privacy is in danger, and it is being constantly under attack by government agencies, big tech companies and non-state actors.

Government Agencies.

Governments across the globe indulge in state-sponsored surveillance to combat terrorism, prevent crimes, and to catch criminals. Unfortunately, surveillance is also used by governments for their political gains.

What type of protection is available to us against state-sponsored surveillance?

Over 150 national constitutions mention the right to privacy. In India, the Right to Privacy is a fundamental right. In addition to that, the Right to Privacy is enshrined in the Universal Declaration of Human Rights. There has been constant attempts to weaken our right to privacy, by attempting to control the use and the distribution of tools like End-to-End Encryption (E2EE).

Big Tech Companies.

In the last few years, we have seen a drastic change in the business model of companies. Big tech companies of our time like Amazon, Google, Facebook, Microsoft, etc. are solely depended on our data. They monetize our data, and sell it to advertisers. This type of business model allows free services and platforms like YouTube, Instagram or Google Search profitable.

If you're not paying for the product, you are the product.”

How true this statement is? We surely are not paying for the online services that we use, then how come we are the product?

We are not paying for free online services like Google Maps, Bing, YouTube, Facebook, Instagram, and Twitter with fiat currency, in fact, we are paying for them with our data. They use our data and our information to show us advertisements which we are most likely to click on. These platforms are designed to be addictive, the more we spend our time on these social media platforms, the more ads they can show us.

Not only we have to ponder upon the data hogging business model of these companies, we also have to think about the ways they implement it. Social media is addictive by design.6 And that design is serving the big tech companies.

Non-State Actors.

Non-state actors are individuals who indulge in illegal activities like cyber crimes to target others.

1.3 Research Methodology

The research conducted for this dissertation is “doctrinal” research. The sources of data used for this study are primary and secondary in nature.

1.3.1 Statement of Problem

The world is constantly changing, our reliance on technology is increasing day by day, the internet has become a basic necessity of life. As the internet has changed the workings of our life, it has also redefined what privacy is. Just like silence is only noticeable when noise is muted, privacy is only craved once it has been lost, and that exactly what is happening in China right now. Chinese authorities are using facial recognition to track its citizens, and in some cities, if Chinese citizens break a traffic law, they will get a ticket automatically and money will also be deducted from their account automatically. Will facial recognition technology in India is going to make governance easy and allow the law enforcement agencies to catch criminals before they commit any crime? Or will this technology be abused by the authorities? India is very different from China, one is a democratic country, the other is authoritarian. One has stronger civil liberties, the other has close to none. India, the largest democracy in the world and second-largest internet user base, has been trying to enact a national data protection law for quite some time now. At the same time, India is also exploring the horizons of facial recognition technology in few states.

In the most recent protests, the people of Hon Kong were fighting for democracy, which is something which we all take for granted. Being a democratic society is not enough for protecting civil liberties and defending privacy, which is a human right. Because even in the strongest of democracies, we risk losing our identity, our most intimate moments, our personal data. Invasive laws can be enacted anywhere in the world, even in the countries like the USA, Australia, and India. Australia enacted a law which bans cryptography, which is terrible for freedom of speech, India wants messaging apps to track the originator of the message, as a result, it will break encryption, again a terrible move for freedom of speech.

Though, more people live outside of China and hence immune to their invasive tracking, unfortunately they are not immune from the Big Tech companies. We are using payments apps with cash back options to purchase items from Amazon, which does not even allow you to delete your purchase history. We are sharing our personal photos with our friends on social media. We use Google every day to find answers to our most embarrassing questions. What we do not realise is that in this process we are allowing these companies to collect a large amount of data about us, and how we use their services. This is not a big issue by itself, maybe for some people it is and that is why they choose to use privacy-friendly alternatives, but for the majority it is not, or the majority believe it is not a big issue. To be fair, these companies collect data about us to show us more relevant ads. The problem begins when ad tech becomes surveillance tech. When government agencies start asking (or forcing) these companies to share the data they collect with the government as well. The problem begins when we realise that these companies can go to any extent to earn more profits. Facebook knows that their products can be harmful to certain sections of the society, for example Instagram is likely to affect the mental healths of teenage girls, yet they are not wiling to address this issue because by doing so, they will lose profits. It is important that we as a society come up with laws which are designed to protect our privacy. Privacy is a sensitive matter, under no circumstances it should be exposed to third parties without the consent of the actual owner of that personal data.

We all care about privacy, you will never give out our password to anyone or share your secrets with any strangers, then why let these companies know what you are thinking about. We all care about privacy, we call want freedom, we all look up to democracy. The true price of convenience is freedom, we are feeding nation states and companies a huge amount of information. This is fine as long it is fine, but the moment this crosses the line, freedom is no more. In order to defend our freedom, and protect our privacy, we need to first claim our digital rights first.

1.3.2 Review of the Literature

To achieve the aims and objectives of this research, the researcher has followed research articles, reports and books, some of which are mentioned hereinafter.

Permanent Record by Edward Snowden (September 2019), Published by Macmillan Publishers Ltd.

Permanent Record is a 2019 autobiography by Edward Snowden, whose revelations sparked a global debate about surveillance. The book describes Snowden's childhood as well as his tenure at the Central Intelligence Agency and National Security Agency and his motivations for the leaking of highly classified information in 2013 that revealed global surveillance programs. Snowden also discusses his views on authoritarianism, democracy, and privacy.

The Art of Invisibility: The World's Most Famous Hacker Teaches You How to Be Safe in the Age of Big Brother and Big Data by Kevin Mitnick (February 2017), Published by Little, Brown and Company.

In this explosive yet practical book, Kevin Mitnick uses true-life stories to show exactly what is happening without your knowledge, teaching you “the art of invisibility” – online and real-world tactics to protect you and your family, using easy step-by-step instructions. Reading this book, the author explains everything from password protection and smart Wi-Fi usage to advanced techniques designed to maximize your anonymity. Kevin Mitnick knows exactly how vulnerabilities can be exploited and just what to do to prevent that from happening.

The Age of Surveillance Capitalism by Shoshana Zuboff (2019) Published by Profile Books.

The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power is a 2019 non-fiction book by Shoshana Zuboff which looks at the development of digital companies like Google and Amazon, and suggests that their business models represent a new form of capitalist accumulation that she calls “surveillance capitalism”

While industrial capitalism exploited and controlled nature with devastating consequences, surveillance capitalism exploits and controls human nature with a totalitarian order as the endpoint of the development.

Digital Disconnect How Capitalism Is Turning the Internet Against Democracy by Robert W. McChesney (March 5, 2013) Published by The New Press.

In this book, the author argues that the sharp decline in the enforcement of antitrust violations, the increase in patents on digital technology and proprietary systems and massive indirect subsidies and other policies have made the internet a place of numbing commercialism. A handful of monopolies now dominate the political economy, from Google, which garners a 97 percent share of the mobile search market, to Microsoft, whose operating system is used by over 90 percent of the world's computers. Capitalism's colonization of the Internet has spurred the collapse of credible journalism and made the Internet an unparalleled apparatus for government and corporate surveillance and a disturbingly antidemocratic force.

In Digital Disconnect, Robert McChesney offers a groundbreaking critique of the Internet, urging us to reclaim the democratizing potential of the digital revolution while we still can.

The Great Tech Game: Shaping Geopolitics and the Destiny of Nations by Anirudh Suri (May 2021) Published by Harper Collins India.

In The Great Tech Game, the author provides a coherent framework outlining the key drivers that will determine the ability of a nation to succeed in this technology-dominant era. He lays out a roadmap for how any country must develop its own strategic plan for success. Leaders must inculcate a new set of capabilities to understand and take advantage of these trends, and create enabling environments for their nations to not be left behind. A particularly challenging aspect will be the ability of countries to define and manage the roles of state and non-state actors in a global race for technological leadership and success. The book goes on to evaluate whether digital colonialism is an inevitable reality, or whether new frameworks will emerge to govern relationships between technology-rich and technology-poor nations.

Game On: Exploring the Impact of Technologies on Young Men’s Mental Health and Wellbeing.

By Jane M. Burns, Tracey A. Davenport, Helen Christensen, Georgina M. Luscombe, John A. Mendoza, Amanda Bresnan, Michelle E. Blanchard, Ian B. Hickie.

This report focuses specifically on young men aged 16 to 25.7 Technologies have changed the way young people communicate, connect and engage with each other and with society. Young people use the internet to find and share information, to support their friends, and to reach out via social networks to others who might be experiencing similar challenges. With the introduction of smartphones, information and services provided online or via mobile applications can be accessed privately and at any time. This can be empowering for individuals who are marginalised or geographically or socially isolated. For the first time in history, it is possible to reduce the disparities in access to health care as a result of isolation, stigma, or cost.

Surveillance and Censorship: The Impact of Technologies on Human Rights.

By Ben Wagner, Joanna Bronowicka, Cathleen Berger.

This paper is about surveillance and censorship and how it impacts our human rights. As human lives transition online, so do human rights. The main challenge for the European Union and other actors is to transition all human rights to the digital sphere. This report argues that the human rights-based approach can be helpful in focusing discussions about security on individuals rather than states. It provides an overview of countries and companies that pose risks to human rights in the digital sphere. It lists the most relevant international laws and standards, technical standards, business guidelines, Internet principles and policy initiatives that have been crucial in transitioning the human rights regime to the digital sphere.

The article also analyses the impact of recent EU actions related to Internet and human rights issues. It concludes that different elements of EU strategic policy on human rights and digital policy need to be better integrated and coordinated to ensure that technologies have a positive impact on human rights. The report concludes that the EU should promote digital rights in national legislation of the third countries, but also in its own digital strategies.8

The Right of Privacy, Harvard Law Review, 1989.

By Jed Rubenfeld

This article is about the constitutional right to privacy, a right that many believe has little to do with privacy and nothing to do with the Constitution. By all accounts, however, the right to privacy has everything to do with delineating the legitimate limits of governmental power.

The right to privacy, like the natural law and substantive due process doctrines for which it is a late-blooming substitute, supposes that the very order of things in a free society may on certain occasions render intolerable a law that violates no express constitutional guarantee. For three decades, the right to privacy has served as a constitutional limit on governmental power. Despite the importance of this doctrine and the attention that it has received, there is little agreement on the most basic questions of its scope and derivation.9

Data Protection Regulations in India and The Significance of Consent Framework.

By Bharath Chandran P S

This article talks about the data protection regulations in India and the significance of consent framework present in India. Every activity we do in the digital sphere generates data, with or without our consent. Similarly, the generated data may be personal or non-personal data. Even with the huge amount of data being collected and processed there have been no specialized laws that focus on the protection of the data.

The main question that arises in this regard is the nature of the data collected, the purpose for its collection, the duration for which the data is stored, which entities are provided access to the data, what is done with the data after the specified use and what are the measures in case of breach of these collected data.10

1.3.3 Objective of the Study

The researcher through this research aims to achieve the following objectives:

  1. To understand the meaning of the Right to Privacy.

  2. To understand the historical evolution of the Right to Privacy laws in India.

  3. To understand how Big Tech companies monetise our personal data for their profit.

  4. To understand how fake news and misinformation can impact our democracies and elections.

  5. To understand how Right to Privacy is a Human Right.

  6. To understand the available legal options in the world to protect an individual’s Right to Privacy.

  7. To understand the available legal options in India to protect an individual’s Right to Privacy.

1.3.4 Research Question

This research aims to answer the following questions:

Q 1. How emerging technologies are impacting our society and the growth?

Q 2. How emerging technologies are impacting our legal system?

Q 3. What is Right to Privacy?

Q 4. How is Right to Privacy recognised in India?

Q 5. What is the importance of Right to Privacy?

Q 6. How to strengthen the Right to Privacy in the digital world?

1.3.5 Hypothesis

With proper education and learning, along with the support of right legislation and a strong data protection mechanism, it is possible to control our privacy and prevent a dystopian future.

1.3.6 Scope and Limitations

The scope of this research is to study the impact of emerging technologies on us, and how it is influencing the growth of the laws of our land. This research aims at spreading awareness about the Right to Privacy and its violations as a Human Rights issue.

The researcher will look into the legal frameworks in place in India and as well as in other countries. This is a study with critical analysis of legislative framework, judicial decisions and policy work. The study involves analyses of primary data in the form of legislation, judicial decisions, and government policies. It would also involve detailed study of secondary sources such as various scholarly articles, case studies, books on the subject and foreign laws.

The research conducted for this dissertation is “doctrinal” research. The sources of data used for this study are primary and secondary in nature. A host of leading textbooks of Indian and International authors on law relating to human rights, right to privacy, freedom of speech, etc. have been referred to.

Articles and essays from leading newspapers like The Hindu, and The Indian Express, various books, and journals, along with online articles published by various reputed organisations have been used in this research by the researcher.

Apart from all these secondary resources, many landmark cases and government documents and reports are also used in this research by the researcher.

1.3.7 Chapterisation

Chapter 1: Introduction

In this chapter, the researcher gives an introduction to this dissertation, along with a brief introduction to what Right to Privacy is, and why it is important for a healthy democracy, and for our freedom of speech.

Chapter 2: Human Rights and Right to Privacy.

In this chapter, the researcher explained the concept of right to privacy in India and the evolution of the privacy law in India. The researcher relies upon various judgements to explain India's stand on right to privacy. The researcher in this chapter also explains why the right to privacy is a human right, and why one should defend its digital rights.

Chapter 3: Right to Privacy in Cyberspace.

This chapter is all about social media and Big Tech companies. In this chapter, the researcher talks about the impacts of social media on our mental health, democracy, elections, and most importantly on our right to privacy and human rights.

The researcher also emphasis the need to be aware of the data collection and surveillance done by private companies for their profit, and give examples on how one can protect themselves.

At the end of this chapter, the researcher discusses the need to combat misinformation and fake news, and share strategies on how a person can detect fake news.

Chapter 4: Digital Rights Around the World.

In this chapter, the researcher mentioned various laws related to right to privacy and technology around the world and in India. In this chapter, the researcher has mainly covered the following countries; USA, Germany, United Kingdom, Spain, and India. The researcher has compared these laws and explained how governments in these countries intercept our personal communications.

Chapter 5: Conclusion and Suggestions.

The concluding chapter provides an overall analysis of the observations made in the dissertation by the researcher and their understanding of the issues surrounding the impact of emerging technologies on our society and the laws, the statutory framework and the extent of its effectiveness in the Indian society. This Chapter concludes the study by coming up with logical answers to the questions set in Chapter One as supported by the doctrinal evidence collected and analysed in the preceding chapters. This chapter culminates with numerous suggestions by the researcher.

Endnotes:

1“Internet usage in India to grow exponentially by 2025”, Ministry of External Affairs, Government of India. https://indbiz.gov.in/internet-usage-in-india-to-grow-exponentially-by-2025/ Last Accessed on 5 April 2022.

2“India to have 900 million active internet users by 2025, says report”, The Economic Times. https://economictimes.indiatimes.com/tech/technology/india-to-have-900-million-active-internet-users-by-2025-says-report/articleshow/83200683.cms Last Accessed on 5 April 2022.

3“ICEA report: 83 crore smartphone users by 2022”, The Indian Express. https://indianexpress.com/article/technology/tech-news-technology/icea-report-83-crore-smartphone-users-by-2022-6499952/ Last Accessed on 5 April 2022.

4PRS India, “The Personal Data Protection Bill, 2019”, PRS Legislative Research. https://prsindia.org/billtrack/the-personal-data-protection-bill-2019 Last Accessed on 5 April 2022.

5“The Personal Data Protection Bill, 2018”, Ministry of electronics and Information Technology, Government of India. https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf Last Accessed on 5 April 2022.

6'The Wall Street Journal', “How TikTok's Algorithm Figures You Out” YouTube. https://www.youtube.com/watch?v=nfczi2cI6Cs Last Accessed on 8 May 2022.

7Burns, J. (2013). Game on: Exploring the impact of technologies on young men's mental health and wellbeing. Last Accessed on 6 May 2022.

8Ben WAGNER, J., Internet, T. & Human Rights, E., 2015. Surveillance and Censorship: The Impact of Technologies on Human Rights, EPRS: European Parliamentary Research Service. Retrieved from https://policycommons.net/artifacts/1336405/surveillance-and-censorship/1943517/ on 06 May 2022. CID: 20.500.12592/2g5tt0. Last Accessed 6 May 2022.

9Rubenfeld, Jed. “The Right of Privacy.” Harvard Law Review, vol. 102, no. 4, 1989, pp. 737–807, https://doi.org/10.2307/1341305. Accessed 6 May 2022.

10Bharath Chandran P S, Data Protection Regulations in India and The Significance of Consent Framework, 3 (5) IJLSI Page 111 - 127 (2021), DOI: https://doij.org/10.10000/IJLSI.111060 Last Accessed on 7 May 2022.

Human Rights and Digital Rights in India: Impact on our Society and the Laws

CHAPTER 2: HUMAN RIGHTS AND RIGHT TO PRIVACY

2.1 Introduction

Digital security, however, is not about hiding or saying or associating with anything in particular. It is about protecting our ability to do so. What a government considers as bad or dangerous or illegitimate changes as often as governments themselves change. If what we say and believe, or who we associate with, becomes disagreeable to a new regime, then these protections become vital.

Digital security is a collective human concern. Thinking about digital security in terms of human rights helps us to understand how digital security affects and concerns all of us.

Unfortunately, there are some popular misunderstandings when it comes to digital security. For example, people often feel ready to accept restrictions to their right to privacy, with the belief that it will allow the government to better protect national security.

Many also assume that digital security is only needed by those acting unethically. Some people assume that a person who defends their online privacy and freedoms likely engages in sneaky or suspicious behaviour. Others fear that, if they practice digital security, other people will make the same assumption about them.

Either way, people with this view dismiss the protection that human rights provide to all of us.

The Personal Data Protection Bill, 2019 provide some user rights, including the rights to confirmation and access, the right to correction and erasure, and the right to data portability. The right to erasure has been added from the previous iteration of the PDP Bill, and is a welcome step.

Data mining companies like Google and Facebook profits off by selling our personal data to advertisers. Data is the new oil. Oil leaks, so does data. Quite frequently the data collected by those data mining companies are leaked by hackers, government agencies or criminals. That user data then lands in the public domain. Your personal and sensitive data is now in public domain.

That is a clear violation of our right to privacy, which is a Human Right.

This is why practising digital security is fundamentally about claiming our rights. Human rights are protections, and when we claim our rights, we protect ourselves. Demanding our privacy is, first and foremost, insisting that our rights cannot be taken away.

In this chapter, we will understand about right to privacy, and its values. I will talk about right to privacy from the lenses of human rights.

We will understand the concept of right to privacy in India and its evolution over the period of time. And I will also mention some instances of the violation of our right to privacy in the digital world.

2.2 Privacy as a Human Right

The Universal Declaration of Human Rights was proclaimed by the United Nations General Assembly on 10 December 1948. The International Covenant on Civil and Political Rights entered into force on 23 March 1976. Both of these documents recognize human rights that are applicable across the world.1

1. Article 12 of the Universal Declaration of Human Rights states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.2

2. Article 17 of the International Covenant on Civil and Political Rights states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.3

Privacy is all about boundaries and protection, but from who? Any participant in society can violate another’s privacy, but privacy rights are especially important when it comes to entities more powerful than individuals. That includes governments and corporations.

Here are three key examples of why the right to privacy is so important:

2.2.1 Governments Spying on the People

Massive government surveillance is a major issue these days. In 2013, whistleblower Edward Snowden revealed that the NSA was illegally spying on American citizens.4 In the years since, entities like the FBI have been caught violating privacy rights5, indicating that this is a systemic problem. It’s not limited to the United States, either. “National security” is often given as an excuse, but the right to privacy is clearly being violated in most of these instances.

2.2.2 Corporations Like to Use Our Data for their Benefit

Governments aren’t the only entities that want your data. Corporations are constantly collecting info to study your shopping habits, what you like and dislike, and more. They often say it’s to improve customer service, but this information can be weaponized, too. Cambridge Analytica is one of the most glaring examples. The organization took data from Facebook – without user consent – and used it to influence voters through political ads. This is a violation of privacy rights.

2.2.3 Privacy Protects the Freedom of Thought and Speech

The right to privacy is considered fundamental because privacy protects so many other rights.6 Freedom of thought and speech are just two examples. Without privacy, everyone could be openly monitored and intimidated by much more powerful forces. Critics of the government – such as journalists – could have their computers seized and searched without consequences, threatening the right to freedom of speech. In 2013, the UN Special Rapporteur on freedom of opinion and expression released a report to the Human Rights Council recognizing the impact of State surveillance on free expression. Without the right to privacy, it would be very difficult to protect freedom.7

2.3 Evolution of the Privacy Law in India

Privacy is a fundamental human right, enshrined in numerous international human rights instruments.8 It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information, and association.

The Constitution of India does not specifically guarantee a right to privacy, however through various judgements over the years the Courts of the country have interpreted the other rights in the Constitution to be giving rise to a (limited) right to privacy – primarily through Article 21 – the right to life and liberty.9

The constitutional right to privacy in India is subject to numerous restrictions. These restrictions have been removed out through the interpretation of various provisions and judgements of the Supreme Court of India:10

India has ratified the International Covenant on Civil and Political Rights (‘ICCPR’). Article 17 of the ICCPR provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. The Human Rights Committee has noted that states party to the ICCPR have a positive obligation to “adopt legislative and other measures to give effect to the prohibition against such interferences and attacks, as well as to the protection of this right of privacy.”17

India does not have a comprehensive privacy legislation, and limited data protection standards can be found under section 43A and associated Rules in the Information Technology Act 2000.

2.3.1 Right to Privacy – Article 21

Article 21 of the Indian Constitution speaks about:18

According to this article, every person – citizens and non-citizens, have the right to live and the right to have personal liberty. The state can’t deprive any person of these two rights except under procedure as prescribed by the Indian Penal Code.

Although Article 21 does not speak specifically about the right to privacy, the Supreme Court of India, in various instances, extended the meaning of Article 2119

1. A.K Gopalan v. The State (1950)

In this case, the petitioner argued that the search and seizure operation carried out in his property violated the provision of Right To Property, as mentioned in Article 19(1). However, the court rejected the argument regarding the right to privacy, saying that the act of police did not obstruct his right to utilise his property. The court also mentioned the caution of ‘reasonable cause’, which gives police the power to search and seize.20

2. M.P. Sharma v Satish Chandra (1954)

3. Kharak Singh V. The State of UP (1962)

In this case, the petitioner argued that the nightly domiciliary visit to his home by the police violated his right to move freely across India, as enshrined by Article 19 of the Indian Constitution. The petitioner also objected to the police shadowing him. While the court agreed that the nightly domiciliary visits did violate the petitioner’s right to live a dignified and free life, it also agreed that the right to privacy was not a fundamental right, and hence surveillance of his movements did not violate the Constitution.25

These were the first instances when the concept of the Right To Privacy was discussed in the Supreme Court. Both of these larger Supreme Court Benches clearly stated that the Indian Constitution does not guarantee a Fundamental Right to Privacy.26

4. People's Union for Civil Liberties v Union of India (1996)

The People’s Union of Civil Liberties (PUCL)27 challenged the validity of Section 33B of the Representation of People Act, 1951.28 Section 33B provided that, notwithstanding a judgment or order of the court or Election Commission, an electoral candidate is not bound to disclose any information apart from that required under the Act. In Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Supreme Court of India recognized that the right to know about electoral candidates falls within the right to information available under the right to freedom of speech and expression described in Article 19(1)(a) of the Indian Constitution.29 It further indicated that information about the criminal background of candidates, assets and liabilities of candidates and their family members, and educational qualifications of candidates should be available to the voters as part of their right.30

The Supreme Court of India held that Indian voters have a right under Article 19(1)(a) of the Indian Constitution to obtain information about political candidates. The People’s Union of Civil Liberties (PUCL) challenged the validity of a 1951 law, which stated that political candidates were not bound to disclose any information not required under the law. The Court reasoned that the availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on the merits and demerits of candidates.31

5. Supreme Court Advocates-on-Record Assn. v. Union of India, (2016)

In the matter where the constitutionality of the 99th Constitutional Amendment & National Judicial Appointments Commission, 2014 was in question, this is what the 5-judge bench said that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity.32

The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court said that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”33

6. Justice K.S. Puttaswamy (Retd) vs Union of India (2017)

During the hearing of a petition that challenged the constitutional validity of the Aadhar based biometric system, the Supreme Court of India unanimously agreed that the right to privacy is a fundamental right as enshrined by the Constitution.34 The court expanded the purview of Article 21 and said that the Right to Life and Liberty, as stated in Article 2135, also included the right to privacy. Since Article 21 falls under Part III of the Indian Constitution, which deals with fundamental rights, the right to privacy thus automatically became a fundamental right after the judgement. Since then, the right to privacy has been a fundamental right in India.36

2.4 Right to Privacy in India

2.4.1 Right To Privacy And Search And Seizure

The right of privacy on one hand and power of the State of search and seizure, on the other hand, has been the subject of judgements not only in India but also in other countries as well. The Supreme Court referred to American case laws under the Fourth Amendment to the US Constitution.

The Court also referred to Universal Declaration of Human Rights, European Convention of Human Rights, other treaties and constitutional provisions and held that the State cannot have unbridled right of search and seizure. In particular, it pointed out that all public records could always be inspected, but it will not be open to the Collector under the impugned amended Section 73 of the Indian Stamp Act, 1899 to direct the production of records held with banks.37

These records are copies of private documents. The right to privacy is to protect the documents which are with the banks. Unless there is reasonable cause or material to believe that such documents may lead to a discovery of fraud, such documents cannot be inspected.38

The Court struck down S. 73 giving uncontrolled power to the Collector to authorize “any person” to take notes or extracts from such documents. Even the rules framed under the Act did not provide sufficient guidelines or safeguards as to how this power could be exercised. The Supreme Court referred to US judgements on this subject. It preferred to follow the minority view in Miller’s case and took the view that the majority decision was incorrect. It also referred to various articles and comments which have taken the view that the majority judgement was wrong, the Court held that documents or copies thereof given to the bank will remain confidential. The fact that they are given to the bank voluntarily will not mean that they cease to be private records as mentioned above.

2.4.2 Tapping of Telephone

Section 5 of the Telegraph Act is commonly known as the wire-tapping clause. It gives power to the government to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety. It can also order interception of communication in the interests of the sovereignty and integrity of India, the security of the state, friendly relation with foreign states or public order or for preventing incitement to the commission of an offence. However, the government has to follow the procedure established by law for issuing such order.

The procedures and guidelines for lawful interception was laid down in the case of People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 318.39 In this case, the Supreme Court of India ruled that telephone tapping is a serious invasion upon an individual’s privacy. However, lawful interception can be carried out under certain circumstances mentioned in the wiretapping provision. This kind of law interception has to be carried in conformity with certain guidelines, which will act as a check on indiscriminate wire-tapping by the law enforcement agencies. It also directed the government to make rules and procedures for carrying out lawful interception of communication. In addition to that, it also laid down the basic guidelines for such interception.

The court ruled that ‘telephone conversation is an important facet of a man’s private life’. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. So, tapping of a telephone is a serious invasion of privacy. This means that telephone tapping would infract Article 2140 unless it is permitted under the procedure established by law. The procedure has to be “just, fair and reasonable”.

The Court has laid down the following procedural safeguards for the exercise of power under Section 5(2) of the Indian Telegraph Act:

The Court noted that with the growth of highly sophisticated communication technology, the right to hold telephone conversation in the privacy of one’s home or office without interference is increasingly susceptible to abuse. Considering this, the Court’s ruling laying down detailed guidelines for the exercise of power under the relevant Act is timely and of historic importance.

2.4.3 Divorce Petition: Husband Tapping Conversation Of His Wife With Others Seeking to Produce In Court, Violates Her Right To Privacy Under Article 21

In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U.S. with others. She denied some portions of the conversation.41

The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under Article 21 of the Constitution.42 These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare the portion denied by her with her admitted voice.

The Court observed that the purity of the relation between husband and wife is the basis of marriage. The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of the right to privacy of the wife. If a husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant.

2.4.4 Prisoner’s Privacy Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all their fundamental rights, which they otherwise possess. Following the conviction of a convict is put into a jail, he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21, and he shall not be deprived of his life and personal liberty except by a procedure established by law.

The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of Tamil Nadu also known popularly as the Auto Shankar Case.43 A prisoner had written his autobiography in jail, describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone is entitled to be let alone and particularly in jail.

In R. Rajagopal vs. State of Tamil Nadu, (1994) Right to Privacy held to be implicit in Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. In this case, the right of a prisoner to privacy recognised.44

2.5 Conclusion

The right to privacy is an essential component of the right to life and personal liberty under Article 21. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. The right to privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime, disorder, or protection of health or morals or protection of rights and freedom of others. Where there is a conflict between two derived rights, the right which advances public morality and public interest prevails.

Judges of the American Supreme Court have talked about the right to privacy as an aspect of the pursuit of happiness. The pursuit of happiness requires certain liberties that we are guaranteed by the state so that we may act in a fashion that we may deem fit, as long as it does not encroach upon the rights of others. Liberty is not a limited or quantifiable right. It is visible on the entire gamut of the legal spectrum.

If one looks at the earlier judgments of the apex court in its formative years, one can observe the desirability of the court to treat the Fundamental Rights as water-tight compartments. This was felt the most in the case of A.K Gopalan v. State of Madras45, and the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India.46 The right to life was considered not to be the embodiment of a mere animal existence, but the guarantee of full and meaningful life.

Being part of a society often overrides the fact that we are individuals first. Each individual needs their private space for whichever activity (assuming here that it shall be legal). The state accordingly gives each individual that right to enjoy those private moments with those whom they want to without the prying eyes of the rest of the world.

Privacy is a special kind of independence, which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns. This autonomy is the most special thing that the person can enjoy. The individual does not want to share their thoughts with the world, and this right will help protect their interests.

Arguing that you aren't concerned about the right to privacy because you have nothing to hide is no different from saying you aren't concerned about free speech because you have nothing to say.47

Endnotes:

1United Nations. Universal Declaration of Human Rights. United Nations. https://www.un.org/en/about-us/universal-declaration-of-human-rights Last Accessed on April 26, 2022.

2United Nations. Universal Declaration of Human Rights. Article 12. United Nations. https://www.un.org/en/about-us/universal-declaration-of-human-rights Last Accessed on April 26, 2022.

3International Covenant on Civil and Political Rights | OHCHR. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights Last Accessed on April 26, 2022.

4Snowden, E. (2019). Permanent Record. Macmillan Publishers.

5Nakashima, E. (2020, September 4). FBI and NSA violated surveillance law or privacy rules, a federal judge found. The Washington Post. https://www.washingtonpost.com/national-security/fbi-and-nsa-violated-surveillance-law-or-privacy-rules-a-federal-judge-found Accessed on April 26, 2022.

6Is privacy a human right? Human Rights Careers. (2021, June 18). https://www.humanrightscareers.com/issues/is-privacy-a-human-right/ Accessed on April 26, 2022.

7OHCHR | Freedom of Opinion and Expression. https://www.ohchr.org/en/special-procedures/sr-freedom-of-opinion-and-expression/freedom-opinion-and-expression-individual-complaints Accessed on April 26, 2022.

8Universal Declaration of Human Rights Article 12, United Nations Convention on Migrant Workers Article 14, UN Convention of the Protection of the Child Article 16, International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights Article 17; regional conventions including Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Johannesburg Principles on National Security, Free Expression and Access to Information, Camden Principles on Freedom of Expression and Equality.

9Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty except according to procedure by law.”

10Stakeholder Report Universal Periodic Review 27th Session – India. (2016, October). The Right to Privacy in India. Centre for Internet and Society India and Privacy International. https://privacyinternational.org/sites/default/files/2018-04/India_UPR_Stakeholder%20Report_Right%20to%20Privacy.pdf Last Accessed on 26 April 2022.

11Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621

12Constitution of India, Article 19(2): “Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

13Govind vs State Of Madhya Pradesh 1975 AIR 1378, 1975 SCR (3) 946

14Govind vs State Of Madhya Pradesh 1975 AIR 1378, 1975 SCR (3) 946

15R. Rajagopal v. State of Tamil Nadu. Global Freedom of Expression. (2019, November 14). Retrieved April 26, 2022, from https://globalfreedomofexpression.columbia.edu/cases/r-rajagopal-v-state-of-t-n/

16Zoroastrian Co-operative Housing Society Ltd.vs. District Registrar, Co-op. Societies (Urban) (2005) 5 SCC 632

17Stakeholder Report Universal Periodic Review 27th Session – India. (2016, October). The Right to Privacy in India. Centre for Internet and Society India and Privacy International. https://privacyinternational.org/sites/default/files/2018-04/India_UPR_Stakeholder%20Report_Right%20to%20Privacy.pdf Accessed on 27 April 2022.

18Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty. except according to procedure by law.”

19Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty. except according to procedure by law.”

20A.K Gopalan v. The State 1950 AIR 27, 1950 SCR 88

21Right to Privacy: Court in Review. Supreme Court Observer. (2021, December 3). https://www.scobserver.in/journal/right-to-privacy-court-in-review/ Last Accessed on April 26, 2022.

22Constitution of India, Article 19(1)(f): “Ommitted”

23Constitution of India, Article 20(3): “ No person accused of any offence shall be compelled to be a witness against himself.”

24M.P. Sharma v Satish Chandra AIR 1954 SC 300, 1978 (2) ELT 287 SC, (1954) IMLJ 680 SC, 1954 1 SCR 1077

25Kharak Singh V. The State of UP 1963 AIR 1295, 1964 SCR (1) 332

26The Right to Privacy in India as a Fundamental Right [UPSC notes]. BYJUS. (2021, December 23). https://byjus.com/free-ias-prep/right-to-privacy/ Last Accessed on April 26, 2022.

27People's Union for Civil Liberties v Union of India AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC

28Section 33B of the Representation of People Act, 1951: “Candidate to furnish information only under the Act and the rules. - Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”

29Constitution of India, Article 19(1)(a): “All citizens shall have the right to freedom of speech and expression.”

30Verma, A. RIGHT TO PRIVACY. CENTRAL INFORMATION COMMISSION. https://cic.gov.in/sites/default/files/RTI/RTIRules2012.pdf Last Accessed on April 26, 2022.

31People's Union of Civil Liberties (PUCL) v. Union of India. Global Freedom of Expression. (2021, July 6). https://globalfreedomofexpression.columbia.edu/cases/peoples-union-of-civil-liberties-pucl-v-union-of-india/ Last Accessed on April 26, 2022.

32Nath, K. Analysis of Right to Privacy in Modern Era. Finology Blog - Latest Updates & News on Finance and Legal in India. https://blog.finology.in/constitutional-developments/analysis-of-right-to-privacy-india Last Accessed on April 26, 2022.

33Supreme Court Advocates-on-Record Assn. v. Union of India (2016) 5 SCC 1, (2016) 2 SCC (LS) 253

34Justice K.S. Puttaswamy (Retd) vs Union of India. Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

35Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty. except according to procedure by law.”

36YouTube. (2020, October 8). Do we have a Right to Privacy in India? | Indian Constitution Important Cases | Fundamental Right. YouTube. Retrieved April 26, 2022, from https://www.youtube.com/watch?v=vca6MlZ3n9k

37Section 73 in The Indian Stamp Act, 1899: “Books, etc., to be open to inspection.—Every public officer having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorized in writing by the Collector to inspect for such purpose the registers, books, papers, documents and proceedings and to take such notes and extracts as he may deem necessary, without fee or charge.”

38Hinailiyas. Deals With The New Dimensions Of Article 21 I.E. Right To Privacy And The Conflicts Related To It. Right To Privacy Under Article 21 And The Related Conflicts. https://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html Last Accessed on April 26, 2022.

39People's Union of Civil Liberties (PUCL) v. Union of India. Global Freedom of Expression. (2021, July 6). https://globalfreedomofexpression.columbia.edu/cases/peoples-union-of-civil-liberties-pucl-v-union-of-india/ Last Accessed on April 26, 2022.

40Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty. except according to procedure by law.”

41Rayala M. Bhuvneswari v. Nagaphomender Rayala AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613

42Constitution of India, Article 21: "No person shall be deprived of his life or personal liberty. except according to procedure by law.”

43R. Rajagopal v. State of Tamil Nadu. Global Freedom of Expression. (2019, November 14). https://globalfreedomofexpression.columbia.edu/cases/r-rajagopal-v-state-of-t-n/ Last Accessed on April 26, 2022.

44R. Rajagopal v. State of Tamil Nadu. Global Freedom of Expression. (2019, November 14). https://globalfreedomofexpression.columbia.edu/cases/r-rajagopal-v-state-of-t-n/ Last Accessed on April 26, 2022.

45A.K Gopalan v. The State 1950 AIR 27, 1950 SCR 88

46Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621

47Supra Note No. 14.

Human Rights and Digital Rights in India: Impact on our Society and the Laws

CHAPTER 3: RIGHT TO PRIVACY IN CYBERSPACE

3.1 Introduction

3.1.1 More Doctors Smoke Camels Than Any Other Cigarette

There is no secret that smoking is bad for your health. However, the first major report warning of smoking's dangers was published 60 years ago by the Royal College of Physicians in the U.K.1

A study published in the September 27 issue of Nicotine & Tobacco Research – UCLA researchers examined dozens of internal tobacco industry documents made public after a 1998 court case, and found tobacco companies had known cigarette smoke contained potentially dangerous radioactive particles as early as 1959.

The radioactive particle in question – polonium-210 – is found in all commercially available cigarettes and inhaled directly into a smoker's lungs, the researchers said. Their study outlines how the tobacco industry was also concerned by the particle, and even studied the potential lung damage from radiation exposure.

The Big Tobacco companies told the Public Health Community that Polonium 210 is a naturally occurring element found in the air, soil, and water and therefore can be found in plants, including tobacco.2 Big tobacco companies spent decades concealing their research, lying and covering up what they knew.3

Why am I talking about Big Tobacco in this chapter, which is on social media and its impact?

That is because, people like to compare Big Tobacco companies with social media platforms, especially around the impacts and harms of social media on kids.4

Facebook, now Meta, is one of the biggest social media company. Two of the top three messaging apps are owned by Meta – WhatsApp and Facebook Messenger. The biggest photo sharing app called Instagram is also owned by Meta.

There are ample of studies showing us the harmful impacts of social media on kids, teens, our mental health, on our democratic elections, public events, etc. And many of those studies are from Facebook (Meta) itself.

Just like Big tobacco companies, who spent decades concealing their research, lying and covering up what they knew, Facebook (Meta) is also doing the same.

Wall Street Journal in their Facebook File series revealed internal company documents that show that the company (Facebook) knows its products cause harm, including to kids.5

3.2 Big Tech and Capital Surveillance

Our personal and private experiences have been hijacked by Silicon Valley and used as the raw material for extremely profitable Digital products.6

The term surveillance capitalism is not an arbitrary term, Silicon Valley deceives us so well. We believe that we have some control over the data that we share with these Big Tech companies, we can opt out of personalised ads, or turn off analytics, etc but that is not really helping.

We think that the only personal information they have about us is what we have given them, and we think we can exert some control over what we give them, and therefore we believe that our trade-off here is somehow under our control that we understand. What is really happening is that we provide personal information, but the information that we provide is the least important part of the information that they collect about us.

image.png

Fig 3.1: Illustration of transfer of data.


Spelling errors in your search terms which colour buttons you prefer how fast you type how fast you drive? This is called residual data. Twenty years ago, this type of data was considered as extra data, a digital waste. Eventually, it was understood that these so-called waste material is extremely useful.7

Facebook knows our hobbies preferences and friends Because they retrieve a lot of information from the digital traces we leave behind unwittingly.8

The companies like to say we collect data so that we can improve our service, and that is true. They collect data and some of it is used to improve the service to you, but even more of it is analysed to train technologies to predict patterns of human behaviour. This allows them to predict what a person is going to do in the future, with a significant amount of accuracy.

Once you have the behavioural surplus, the comprehensive behavioural data of hundreds of millions of people, you can start predicting the preferences of specific groups or a community.

And then sell that prediction to their business customers, and in return, you see a very relevant ad of your favourite product with a discount.9

Simple thing like buying a certain kind of shampoo can divulge essential information about us?

For example, the New York Times reported a case of a supermarket chain that knew a girl was pregnant even before she did. The markets algorithms discovered that the girl switched from fragrant shampoos to more neutral smelling products. Since the olfactory senses of pregnant women becomes stronger, the market algorithm assumed this girl must be pregnant. Her father didn't know until He was repeatedly sent special offers for baby products.10

Big Tech sometimes knows us better than we know ourselves, they can predict things like our personality our emotions our sexual orientation our political orientation a whole range of things that we never ever intended to disclose at the first place.

How do Google use all the collected data about you?

We also collect the content you create, upload, or receive from others when using our services. This includes things like email you write and receive, photos and videos you save, docs and spreadsheets you create, and comments you make on YouTube videos.”11

This is from Google’s privacy policy, these 42 words explain that everything you do on Google, from using their search engine or YouTube, to saving your private photos and documents in Google Drive, etc are being collected by Google. Your emails are not that private as you think, everything you type is being collected by google. Google knows that I copied a paragraph from their privacy policy.

We collect information to provide better services to all our users — from figuring out basic stuff like which language you speak, to more complex things like which ads you’ll find most useful, the people who matter most to you online, or which YouTube videos you might like. The information Google collects, and how that information is used, depends on how you use our services and how you manage your privacy controls.”12

Only 71 words to explain how they use your data. If you need to know more the right to explanation comes handy, the right to explanation is crucial for accountability and transparency in the use of algorithms to make decisions in our lives.

Data mining companies like Google and Facebook profits off by selling our personal data to advertisers. Data is the new oil. Oil leaks, so does data. Quite frequently the data collected by those data mining companies are leaked by hackers, government agencies or criminals. That user data then lands in the public domain. Your personal and sensitive data is now in public domain.

That is a clear violation of our right to privacy, which is a Human Right.

This is why practising digital security is fundamentally about claiming our rights. Human rights are protections, and when we claim our rights, we protect ourselves. Demanding our privacy is, first and foremost, insisting that our rights cannot be taken away.

3.3 Impact on Democracies and Elections

Times have changed in the last 15 years, now we can consume and interact with online content. People of all ages are on social media like, Facebook, Twitter, Instagram, TikTok, etc. and that is where they are getting their information. The majority of people no longer watch prime-time news shows. I do not remember when I last watched news on television, but I do follow a lot of news agencies and journalists on social media, including YouTube.

And the political campaigns for elections understand this, and that is why they also target people to gain their vote on social media.

Politicians are spending more and more money on social media. A research firm, Burrell Associates, estimated that political campaigns spent more than $1.4 billion on digital advertisement in 2016.

While the Russians (and more and more the Chinese, North Koreans, and Iranians) use digital tools to dangerously disrupt our democracy, perhaps the greatest threat to our freedom comes from tech companies that recognize that we’re neither the product nor the customer. Instead, they see us as monetizable data, as beings whose behavior can be predicted, manipulated, and therefore, profited upon.13

Imagine Hitler having access to the tools like the social media? Imagine Hitler using Facebook to spread hate against the Jews. If you can imagine this, then you are imagining the present. We live in a world where bad actors use technology to spread hate, commit crimes, recruit terrorists and divide our society. All this can affect our lives, our democracy.

Democracy should not be taken for granted, it should not be replaced with other forms of governance. Democracy is not the greatest form of governance at our disposal, but it is the best among the worst. Democracy is worth fighting for, we need to protect democracy at all cost.

3.4 Misinformation and Fake News

What is fake news?

False news stories, of a sensational nature, created to go viral online for:

Generating web traffic or discrediting a public figure, political movement, company, etc.

Fake news can be found on pretty much every corner of the internet.

Social media is a primary source of information for many people, which puts them at risk for consuming and sharing fake news.14

A global study of almost 20,000 people found that 62% believe there to be a fair extent or great deal of fake news on online websites and platforms (including social media).15

Social media is the second most popular source of information about news and current affairs in the entire world.16

Social media arrived into an already polarized world. Starting around 2009 a series of design changes added fuel to the fire, it was the like button, the retweet button and then algorithmicizing everything. These three changes converted social media into one of the greatest dividing forces we have ever seen.

These changes created social media as an outrage machine. Unless you are a famous personality, nobody would have asked how do you feel, but after the advent of social media, unlike TV news channels, the communication became symmetrical. Anyone now can voice their opinion and make their voice heard. Social media brought democracy back to the people, but not everything was blooming. This chapter focuses on the bad side of social media and its impacts on our society.

It starts with the business model because social media runs on advertising dollars, its designers will do whatever it takes to keep us engaged. Just like Big Tobacco companies would make more profits if we were hooked on their products. The more we use their product, be it social media or tobacco, the more they make money.

Social media platforms make more money the longer we stay on the platform, this means they have an incentive to present us with information that is most likely to draw us in to keep us engaged, to keep us coming back and spending more and more time online. The most engaging content is content that triggers our emotions, particularly moral emotions like moral outrage, so the algorithms built into these platforms that select information to show to us push to the top of our feeds content that is likely to trigger strong emotions like outrage.

Tribal emotions like outrage are part of our biological makeup within the appropriate scope outrage helps bind together a moral community, but just as our taste for sugars and fats didn't evolve for a world full of fast food, our taste for moral outrage didn't evolve for social media.

In India, we quite a few fact checking websites and social media handles. I would like to quote some fake stores circulating on the internet lately. I have taken these stories for The Quint's WebQoof Fact Check Platform.

A video which purportedly shows Delhi Chief Minister Arvind Kejriwal talk about accepting bribes, along with his Punjab counterpart Bhagwant Mann and other leaders of the Aam Aadmi Party (AAP), has been shared on Twitter by the Spokesperson of Delhi Bharatiya Janata Party (BJP) unit, Naveen Jindal.

However, the video has been edited. The original video, which is from an interview conducted by Hindi news channel India TV in April, shows Kejriwal talking about 'ending corruption in Punjab in ten days'. This story was published on The Quint on 9 April 2022.17

A video, which shows a mob brandishing guns and knives, and also shouting provocative slogans in front of a temple, is being shared on social media, linking it to the recent communal clashes in Madhya Pradesh's Khargone on the occasion of Ram Navami.

However, the video is from a Muharram procession that took place in 2018 in Khargone, and it is not linked to the recent clashes.18

3.5 Conclusion

What can be done? Can we do anything to control the way social media impacts our lives? Can we prevent fake news and misinformation from being spread like wildfire on the internet?

When it comes to Big Tech, “we are not the product, we are the raw material”, as famously said by Shoshana Zuboff, the author of the book 'The Age Of Surveillance Capitalism'.

According to Zubov our personal and private experiences have been hijacked by Silicon Valley and used as the raw material for extremely profitable Digital products.

The easiest way to counter this is by claiming your digital rights and using privacy-focused alternatives. One can easily replace Google, Facebook, Microsoft, etc from our lives, all it takes is some effort and determination to live a private life.

A quick glance at the privacy policy and the terms of services on companies like Google and Facebook will give you a rough idea about the amount of data collected by them.

You will not tell your passwords, share your emails or private messages or your exact location with any stranger, right? Then why share all this data with companies with Google or Facebook, which uses this information to profile you?

Target advertisement are extremely precise, to prove this Signal Foundation used their Instagram account to spread awareness about this.

They created a multi-variant targeted ad designed to show us the personal data that Facebook collects about us and sells access to. The ad simply displayed some of the information collected about the viewer, which the advertising platform uses.

The following are the samples of those advertisements ran by Signal on Instagram.